How the International Cricket Council's Dispute Resolution Committee works

India and Pakistan are currently locking horns over the enforceability of a memorandum of understanding for a bilateral series that was supposed to be played between the nations but that India cancelled. It’s a fascinating dispute that has recently been referred to the Dispute Resolution Committee (DRC) of the International Cricket Council (ICC). 1 In light of this, the author thought it would be interesting to briefly explore the background to the dispute, before explaining how proceedings before the DRC work. In particular, the article will focus on:

An introduction to the ICC Dispute Resolution Committee Terms of Reference

How dispute panels are constituted

Powers of the dispute panel

Parties rights of appeal

Brief background to the India-Pakistan Series dispute

Cricket between India and Pakistan has historically been marred by frosty political relations.2 On 9 April 2014, the Board of Control for Cricket in India (BCCI) and the Pakistan Cricket Board (PCB) signed a memorandum of understanding (MOU) for the purposes of playing six bilateral cricket series between India and Pakistan between 2015 and 2023.3

The first of these series was to be hosted by Pakistan in December 2015. However, the going ahead of the 2015 Series was subject to the affirmative consent of the Government of India, which in that instance was not forthcoming4, citing security concerns. Similarly, the second bilateral series which was scheduled5 to be hosted by India in late 2017 did not take place as it remained subject to the prior approval of the Government6, given the continuing strained relations between the two nations.

It is against this backdrop that the PCB has initiated legal proceedings7 against the BCCI before the ICC’s Dispute Resolution Committee. They are claiming damages to the tune of approximately $70 million, being the value of the broadcasting rights had the series gone ahead8. The BCCI have disputed the claim, asserting that: (i) any series to be played between the two nations would require the prior approval of the government; and (ii) the MOU was merely a “tentative understanding” and not a legally binding contract.9

It has been reported10 that the MOU was to be further formalised in the form of a binding contract(s) between the Parties. However, since the contents of the MOU have not been made available to the public, any discussion on its prima facie enforceability would be speculative in as much as it would be pre-mature.

In light of this, the following sections of the article are focused on explaining how proceedings before the DRC would work in practice.

ICC Dispute Resolution Committee Terms of Reference 2016

the scope of the powers and jurisdiction of the ICC, and particularly the DRC;

the constitution of the panel hearing disputes; and

the procedure for hearing disputes, including the mandatory “pre-action” requirement of good faith negotiations.

The Terms also provide that all dispute resolution proceedings before the DRC are governed by English Law (See 2.1). Further, the Dispute Panel (as defined below) would constitute an "arbitral tribunal", the proceedings before which would constitute ‘arbitration proceedings’, within the meaning of the Arbitration Act 1996 (the Act).

The general principle in the courts of England and Wales is that arbitration is not seen as a precursor to litigation but as an alternative11. While arbitral proceedings, by their very nature, involve a greater degree of procedural flexibility, the conduct of proceedings must be within the confines of the Act. Indeed, there a number of ‘mandatory provisions’ in the Act12, which have effect in spite of any agreement to the contrary between the parties. The important mandatory provisions in context of the Terms have been discussed in greater detail below.

However, the Act also contains non-mandatory provisions which allow the parties to make their own arrangements by agreement but provide a default set of rules which apply in the absence of such agreement.13 The parties may make such arrangements by agreeing to the application of institutional rules; the Terms being one such example.

How are the Dispute Panels constituted?

Dispute Panels are comprised of members of the DRC14, who are specifically assigned to and therefore responsible for, hearing and adjudicating on any dispute. It is the duty of the chairperson of the DRC (in this case the Hon’ble Mr. Michael Beloff QC, or such other person as appointed in accordance with the Terms from time to time) to convene the Dispute Panel.

The Panel must consist of three members from the DRC (see 8.1), unless the Chairman deems it appropriate, in terms of costs and/ or resources to have the dispute heard by a single arbitrator, who, in accordance with the Terms, can only be the Chairperson. Every three person panel will be presided over by a chairperson, who in turn would be appointed by the Chairperson.

Either Party may challenge the appointment of any member to the Dispute Panel on grounds of “justifiable doubts as to the Dispute Panel members’ impartiality or independence” (see 8.3) by serving a notice setting out the grounds of challenge to the other Party, members of the Dispute Panel and the Chairperson.

We have no further information on the constitution of the Panel for the current Dispute and neither do we have any details on whether any Party has challenged the constitution of such Panel.

Powers of the Dispute Panel

Section 34 of the Act provides the Dispute Panel with the flexibility to decide all procedural and evidential matters.

Particularly, the Panel can choose “whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented”15.

The ICC has accordingly elected to disapply the strict rules of evidence, pursuant to paragraph 9.5 of the Terms. This imposes a lower evidentiary standard on the Parties, as the English law elements of evidence, i.e. "relevance", "admissibility" and "weight" need not be present. The Panel will be “entitled to consider any evidence submitted or provided and give such weight to it as it reasonably thinks fit”.

Additionally, under section 34, the Panel would have the flexibility to determine the extent to which it “should itself take the initiative in ascertaining the facts and the law”16. The ICC has therefore bestowed on the DRC, the power to determine the facts and substantive law to the fullest extent, subject to the following exception under paragraph 9.10.2 of the Terms:

“to the extent that a matter arises which properly falls within the sole jurisdiction of another person or body, the Dispute Panel shall not rule upon such matter but shall issue such directions … to ensure that all matters relevant to the resolution of the dispute are taken into account and decided, where necessary. The Dispute Panel shall take due account of and shall apply, where appropriate, any findings or decisions of other persons or bodies which are binding on one or more of the parties.”

Parties’ right of appeal

Under Paragraph 10.3 of the Terms, the Dispute Panel would be required to provide the Parties with written reasons for the decision it has arrived at. The decision, when issued by the Dispute Panel, will be final and binding on the Parties and the Parties will be deemed to have irrevocably waived their “right of appeal, review or recourse to a court of law, arbitral body or any other body of any nature” (see paragraph 2.3).

However, this restriction remains subject to two mandatory provisions under the Act, which allow the parties to challenge the decision based on (i) the Panel’s lack of substantive jurisdiction to hear the Dispute (section 67); and/or (ii) a serious irregularity affecting the Panel, the proceedings or the final award (section 68).

Substantive Jurisdiction: A challenge to the Panel’s jurisdiction would take the form of a rehearing, and the question to be answered is whether the Panel was correct in arriving at the decision which it delivered17. On application, the court may either confirm the award (and therefore the Panel’s jurisdiction), vary the award, or set aside the award in whole or part.

Serious Irregularity: Serious irregularity' means an irregularity of one or more of the kinds listed in heads (1) to (9) below which the court considers has caused or will cause substantial injustice to the applicant:

failure by the Panel to comply with its general duty;

the Panel exceeding its powers (otherwise than by exceeding its substantive jurisdiction);

failure by the Panel to conduct the proceedings in accordance with the procedure agreed by the parties;

failure by the Panel to deal with all the issues that were put to it;

any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award exceeding its powers;

uncertainty or ambiguity as to the effect of the award;

the award being obtained by fraud, or the award or the way in which it was procured being contrary to public policy;

failure to comply with the requirements as to the form of the award; or

any irregularity in the conduct of the proceedings or in the award which is admitted by the Panel or by any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award.

If there is shown to be serious irregularity on any of the grounds set out above, the court may remit the award to the tribunal, in whole or in part, for reconsideration; set the award aside in whole or in part; or declare the award to be of no effect, in whole or in part.18

Comment on the India-Pakistan Dispute

It is understood that a written notice of dispute, submitted by the PCB, has been duly accepted by the DRC. This would imply that the DRC was satisfied that the Parties had exhausted all other forms of resolution and were unable to reach a negotiated settlement. This is because parties are mandatorily required to engage with each other in good faith before submitting disputes to the DRC.

Such good faith negotiation is required to take place over a period of approximately 45 days before being seized by the DRC and an indicative timeline of that process has been set out at Annexure 1 below. All good faith discussions are deemed to have taken place on a "without prejudice" basis; meaning that any statement or admission made by either party during the course of such discussions would not be admissible as evidence against the maker of such statement or admission19.

Good-faith negotiations having failed, the PCB would have submitted a written notice of dispute to the Chairperson of the DRC containing the following information, in accordance with paragraph 7.1 of the Terms:

“7.1.1 details of the parties to the dispute;

7.1.2 a brief statement of the facts and legal argument, including a statement of the issue to be submitted to the DRC for determination;

7.1.3 details of any remedies that are sought; and

7.1.4 any proposals the Claimant may wish to make as to the procedure to be followed in the case, including (without limitation) as to whether the Dispute Panel should consist of only one Committee member or three Committee members.”

The Notice of Dispute, having been accepted by the ICC, would therefore have been the official trigger for the DRC to constitute the Dispute Panel as set out in "section c" above, for the purposes of hearing the Dispute. It must be noted that the commencement of formal proceedings before the DRC would not preclude the Parties from continuing to engage with each other in arriving at an ‘out-of-court settlement’ on a "without prejudice" basis. This is in keeping with the ‘overriding objective’ of civil litigation under the Civil Procedure Rules.

From this point on, the procedure for the conduct of proceedings is largely left to the discretion of the Dispute Panel provided that each member of the Panel consults each other to determine an appropriate procedure for resolving the Dispute.

As the Terms mandate that these proceedings be conducted in private, there is little information on what they tend to include. However, typically, these proceedings would provide a fair opportunity to each Party to present its case, through written submissions, calling evidence and an oral hearing (via telephone/ video conference or in person), if deemed necessary.

The decision of the Dispute Panel shall be by a simple majority. In the event of a deadlock among the arbitrators, the chairperson shall have the casting vote. Each Party is entitled to receive written reasons for the decision (along with any dissenting opinions) from the Panel.

The views expressed here are solely those of the author in his personal capacity and do not in any way represent the views of any other individual or entity.

Annexure 1

Timeline for Mandatory Good Faith Discussions before Trial at DRC

Step

Particulars/ Event

Timeline (in days)

DRC Terms (paragraph)

PCB to provide BCCI with written notice of dispute. Notice to be duly received by BCCI.

T

6.1.1.

BCCI to provide a written response to the PCB, setting out its position in relation to the dispute.

T+7

6.1.2

Parties to meet in person to attempt to resolve the dispute by engaging in good faith discussions

(At this stage, both parties are to be represented by its CEO or other duly authorised executive officer).

T+14

6.1.3

If dispute cannot be resolved in accordance with Step 3 above, parties to meet again, together with the ICC CEO who shall seek to assist parties in resolving the dispute.

T+21

6.1.4

Parties are required to make one final attempt at resolving the dispute through good faith discussions.

These discussions are to be overseen by the ICC Chairperson / deputy chairperson, where conflicted.

Upon failure to resolve dispute in accordance with Step 4 above.

6.1.5

Refer to DRC for formal resolution under the Terms, if good faith discussions are unsuccessful.

14† The DRC comprises 9 members in total - a chairperson appointed by the ICC Chief Executives’ Committee, an independent Ethics Officer, the chairperson of the Audit Committee and 7 additional members; 2 from the ICC’s Code of Conduct Commission and 5 being independent lawyers from each of the 5 ICC regions, having significant experience in international arbitration and sports disputes. More information on the constitution of the DRC can be found on the official website of the ICC.

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Author

Rustam is an Indian qualified lawyer and sports law paralegal at Mills & Reeve, Manchester. He has recently completed a Master’s degree in International Sports Law from Instituo Superior de Derecho y Economía (ISDE), Madrid (2018 edition) and has previously gained 3 PQE as an Associate with AZB & Partners, one of India’s leading full-service law firms.